Need To Examine If Adversarial Litigation Has Been Beneficial : Justice Narasimha Bats For Mediation

Supreme Court judge Justice P S Narasimha on Wednesday questioned the long-held belief that the adversarial system of litigation has served India well, calling for a deeper and more honest evaluation of its actual contribution to the justice delivery system.

Expressing his views in the open court after the hearings for the day were over, the judge expressed “great disbelief” at the assumption that adversarial litigation has been a great service to society.

“We are in a great disbelief as if this adversarial litigation has done a great service to us. Very honestly, we need to very sincerely and seriously examine how much good the adversarial litigation has done. I have my own doubts. I think the system must change,” Justice Narasimha said.

Justice Narasimha stressed that far greater benefits would flow to litigants and the justice system if mediation were adopted as a core method of dispute resolution. He urged a policy shift that encourages mediation not as an alternative, but as an integral component of the judicial process.

“Much more benefit will come if we adopt mediation,” he said. He opined that both adjudication and mediation could be done in parallely. "We can experiment seamlessly doing mediation obligation and also performing adjudicatory role. Both can be done simultaneously," he said.

The judge also highlighted the slow institutional development of dispute-resolution mechanisms outside the courtroom. “Arbitration and mediation in our country are still in our country unorganised sectors,” he observed, noting the need for organised frameworks, trained professionals, and systemic support.

Justice Narasimha also suggested that lawyers should act as mediators too. However, lawyers need to "unlearn" a lot of things to do mediation effectively. In this context, he recalled the observations made in a recent judgment authored by him.

In the judgment in Raksha Devi v. Prakash Chand, Justice Narasimha wrote :  "If lawyers are to double-up and evolve as mediators, a development which we consider is inevitable, they must cultivate a distinct set of skills and adopt a new attitude towards dispute resolution, one that diverges from adversarial litigation. The acquisition of these skills and mind set begins with revisiting certain traditional techniques and practices developed for argumentation,"

Supplementing Justice Narasimha's observations, Senior Advocate Dr Abhishek Manu Singhvi said that there was a difference between "hearing" and "listening" and for mediation, one needs to "listen".

The bench comprising Justice Narasimha and Justice Chandurkar was hearing the applications relating to the SEBI-PACL matter.

Recently, Chief Justice of India Surya Kant also pushed for mediation, saying that mediation cannot be seen as a threat to the justice delivery system.